Volume 28 — California Appellate Reports

<p>Guardianship—Custody of Minor—Power of Court—Sections 214, Civil Code, and 1747, Code Civil Procedure.—The superior court, upon denying an application made pursuant to the provisions of section 1747 of the Code of Civil Procedure by a father for letters of guardianship of the person and estate of his minor child, has authority nevertheless to make an order as to its custody by virtue, of the provisions of section 214 of the Civil Code.</p> <p>Id.—Construction of Code—Court of “Competent Jurisdiction.”—In such a proceeding the superior court is a court of “competent jurisdiction” to make such an order, within the meaning of section 214 of the Civil Code.</p> <p>Id.—“Application”—What Constitutes.—In such a proceeding, the petition for letters of guardianship and the answer filed thereto by the opposing parent praying for the denial of the application of the petitioner and the award of the custody of the minor to herself, constitute an “application” as that term is used in section 214 of the Civil Code.</p> <p>Id.—Bringing of Action for Custody Unnecessary.—Section 214 of the Civil Code does not require that either party “bring an action” for the custody of the minor, as required by section 199 of such code, and a formal application setting forth the appropriate facts may be regarded as a sufficient basis for a judicial investigation of the situation of the minor and the disposition of its custody in accordance with its welfare.</p> <p>Id.—Jurisdiction—Residence of Applicant—Nonresidence of Minor. The superior court of the county in which the application is made is not without jurisdiction to mate an order as to the custody of the minor because of the residence of the minor with its mother in another county, where the applicant is the father of the minor and a resident of the county in which the application is made.</p> <p>Id.—Separation op Parents—Residence op Minor Children.—Where a husband and wife are living in a state of separation, the county of the husband’s residence is the county of the residence of the minor children, unless he has consented to their acquiring residence elsewhere, or has voluntarily relinquished Ms parental authority over them or has otherwise been legally deprived thereof.</p> <p>Id.—Contempt—Order por Children to Visit Father—Disobedience op.—The refusal of a wife to whom the custody of her minor eMld has been awarded to comply with the provision of the order giving the father the right to have the child visit him during school vacations is contempt of court, and such refusal is not justified by the failure of the father to send the child’s railroad fare, where he has directed that it he taken out of the “support money” furnished by him.</p>

Alameda County and from an order denying a new trial. W. S. Wells, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing to vacate a judgment. J. P. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeals — Obdebs Beeusing to Set Aside Default — Insueeicient Becobd.—Where the only transcript on appeal from certain orders refusing to set aside a judgment of default is one certified by the county clerk, and not by the judge, as required by section 953a of the Code of Civil Procedure, the record on appeal is insufficient.</p>

<p>APPEAL from an order of the Superior Court of Alameda County refusing permission to correct a notice of intention to move for a new trial. William H. Waste, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. George H. Cabaniss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. B. V. Sargent, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence — Personal Injuries — Sufficiency of Complaint.—The complaint in an action brought by a laborer in the employ of a gas and electric company against such company, a street-railroad company, and the owner of a wagon and team of horses, for damages for personal injuries received from the falling upon him of one of the horses into the trench in which he was working, by reason of the horses becoming frightened at the sparks emitted from an electric welding machine being operated by the street-railroad company, is not subject to demurrer, as to the street-railroad company, for failure to allege that the machine would frighten horses of ordinary gentleness, or that the horses concerned were ordinarily gentle or roadworthy, where it is alleged that such machine was calculated to “scare most horses”; nor is the pleading, as to such defendant, demurrable on the ground that the court judicially knows that a welding machine is not an object naturally calculated to frighten ordinarily gentle horses; nor is the complaint subject to demurrer for failure to allege that the streets at whose intersection the accident happened were open to the public at the time of the accident.</p> <p>Id.—Negligence of Flagman of Gas Company — Failure to Warn Plaintiff—Sufficient Complaint Against Gas and Electric Company.—Such complaint is not subject to demurrer, as to the defendant gas and electric company, whose negligence is alleged to consist in the failure of its flagman stationed at or near the trench to warn the plaintiff in time to have enabled him to avoid the danger, on the theory that no legal duty rested upon the flagman to see that the horses did not take fright at the welding machine, or if they did, to see that they did not injure the plaintiff.</p> <p>Id.—Negligence of Driver of Team—Failure to Wait Turning off of Electricity — Sufficient Complaint as Against Owner of Team.—An allegation in such complaint that while the driver of the team did call to have the electric current turned off, “he carelessly and negligently failed to wait to ascertain whether or not "his request would be complied with,” sufficiently presents the question of the negligence of the owner of the team, and renders the complaint, as to such defendant, sufficient as against demurrer.</p> <p>Id.—Actionable Negligence—Essentials.—Three elements are necessary to sustain an action based on negligence,-—namely, the existence of a duty on the part of the defendant to protect the plaintiff from the injury of which he complains, a failure by the defendant to perform that duty, and an injury to the plaintiff from such failure.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Franklin J. Cole, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Accident Insurance — Indemnification Against Injuries of Employees—Premium Based upon Compensation—Examination of Books of Insured—Bill of Discovery.—An action may be maintained by an accident insurance company, which has contracted to insure a private corporation against loss from liability for damages on account of bodily injuries accidentally suffered by any of the corporation’s employees for a stated period, in consideration of the payment to the insurance company of a certain percentage of the compensation paid to such employees, to compel the corporation, upon its refusal to permit the company to examine its books for the purpose of ascertaining the amount of such compensation, to bring its books into court for that purpose, on the theory that the contract created a sort of confidential relation between the parties, and imposed upon the defendant the duty of keeping an accurate record of the pay-roll to which the contract related.</p> <p>Id.—Keeping of Record of Compensation PaidOmission to Sign Schedule so Providing—Part of Policy.—An omission to sign the schedule on the back of such a policy does not have the effect of making the provision therein for the keeping by the insured of an account of the compensation paid to its employees, of no binding force, where the policy itself has been accepted, signed by the plaintiff, and the schedule made an essential part thereof by express provision.</p> <p>Id.—Contracts—Acceptance of Paper Signed by One Party—Binding of Acceptor.—The receipt and acceptance by one party of a paper signed by the other party, and purporting to embody all the terms of a contract between the two, binds the acceptor, as well as the signer, to the terms of the paper.</p> <p>Id.—Classes of Employees Covered by Policy—Ambiguity—Failure of Insured to Keep Separate Accounts—Effect of.—Where such a policy of insurance is ambiguous as to whether it was intended thereby that the compensation paid was to embrace those employees only who were engaged in “outside” work, or to include those employed on the “inside” as well, and the insured fails to keep a separate account of the payments made to each class of employees, which thereby renders it impossible to determine how much has been paid, to each, such conduct amounts to a construction by the insured that the policy is to cover both classes.</p> <p>Id.—Liability Independent of Ambiguity in Policy.—The omission of the insured to keep separate accounts of the amount of compensation paid to its two classes of work and thus making it impossible to determine what was paid to each, renders the insured liable to the company for premiums based upon the compensation paid to all employees, even though the policy be construed as limited in its scope to but one class of employees.</p>

<p>Mechanic’s Lien—Cessation of Work—Time of Filing—Construction of Code—A notice of claim of lien for -the value of labor and materials furnished under a contract for the alteration and repair of a dwelling-house filed on the fifty-ninth day following the cessation of work under the contract, is filed in due time under the provisions of section 1187 of the Code of Civil Procedure, as amended in 1911, where such cessation was by mutual consent of both owner and contractors, and followed by immediate acceptance of the work.</p> <p>Id.—Action to Enforce Lien—Findings—Value of Labor and Material—Omission to Include Small Amount in Judgment—Owner not Injured.—Where in an action to enforce such a lien, it is found upon sufficient evidence that the value of the labor and materials furnished prior to the date of the abandonment of the contract by mutual consent of both parties, was a certain amount, and it is further found that after such date the owner used five dollars’ worth of materials furnished by the plaintiffs which they had left on the premises, the defendant cannot contend that such findings are conflicting, as in no possible view of the case should she be heard to complain that this amount was not included in the judgment against her.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. C. A. Raker, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Venue—Change of Place of Trial—Convenience of Witnesses—Discretion.—Motions for changes of venue on the ground of convenience of witnesses are addressed to the discretion of the trial court and rulings thereon will not be reversed on appeal unless there has been a clear abuse of that discretion.</p> <p>Id.—Preponderance in Number of Plaintiff’s Witnesses — When Discretion not Abused.—The fact that the number of witnesses whom the plaintiff claims he must use at the trial is greater than those of the defendants is not decisive of such a question, and it is held in this ease that there was no abuse of discretion ip. denying $ change of venue,</p>

<p>Criminal Law—Infamous Crime Against Nature—Assault With Intent to Commit—Sufficiency of Evidence.—In this prosecution of the crime of an assault with intent to commit the infamous crime against nature it is held that the evidence was sufficient to establish an assault within the meaning of section 240 of the Penal Code and of section 220 thereof.</p>

<p>Contracts—Sale of Marble—Former Decision—Law of Case.—In this action to recover on a contract for furnishing marble for the repair of a. building, it is held that the decision on the former appeal (163 Cal. 227) that the contract price was to be determined by the amount of the marble set and measured in the building, and not by the amount actually furnished by the contractor, is the law of the case.</p> <p>Id.—Finding—Conflicting Evidence—Rule.—It is also held that the finding on the vital point in the case,—namely, as to the amount and value of marble saved from the San Francisco fire' and earthquake and used in the building, in favor of the respondent’s theory, cannot be disturbed on appeal, under the well-recognized rule as to conflicting evidence, notwithstanding the feeble and unsatisfactory character of the evidence in support of such theory.</p> <p>Id.—Surplus Marble—When Purchaser not Liable For.-—In such a case, the agreement of the owner of the building being only to pay for whatever amount of marble was incorporated in the building, he could not be held for surplus marble shipped, and such surplus was shipped at the risk of the contractor, there being no evidence that the former appropriated more marble than was actually used in the building.</p> <p>Id.—Passing op Title—Misleading Instruction.—An instruction that the title to the marble shipped under the contract in evidence and under the plans and specifications connected therewith, passed to the defendant' when the marble was placed aboard the ears, f. o. b., at Colton, and that the marble so shipped thereupon became the property of' the defendant subject to the right t'o return to plaintiff any surplus, is misleading, as the jury might thereby believe that the amount of marble shipped and not' the amount set in the building was the test of the defendant’s liability.</p> <p>Id.—Erroneous Instruction—Acceptance op Marble.—The jury should not have been instructed, “You are instructed that if you find from the evidence that there was any surplus marble shipped to defendant by the plaintiff, or by plaintiff’s assignor, and received and accepted by the defendant, that it was the duty of defendant to account for such surplus marble to plaintiff, or plaintiff’s assignor,” as the jury might have concluded that the defendant was liable for all the acceptable marble received at' the building.</p> <p>Id.—Title Passing on Shipment.—It was error to instruct the jury, “According to the view which I take of the law and as I have stated in one of the instructions, any marble shipped from Colton, which accorded with the terms and conditions of the contract of the parties, as to size, dimensions, and the like, and which was to be shipped in good condition free on board the cars at Colton, thereupon and thereby became the property of the defendant, Law,” as the jury would almost necessarily conclude that the amount of such marble shipped was the test of the defendant’s liability under the contract, instead of the amount set in the building.</p> <p>Id.—Determination op Dependant’s Liability—Improper Refusal of Requested Instruction.—A requested instruction should have been given to the effect, that if the jury should find that the plaintiff agreed with defendant that the total extent of the latter’s liability should be ascertained by determining the amount of marble set in the building and multiplying the same by the unit price for such marble as set forth in plaintiff’s offer, defendant would not be required to pay plaintiff for any excess marble that might have been shipped in defendant’s name from Colton to San Francisco, unless the jury should find that defendant refused to turn over t'o plaintiff such excess marble, if any there was.</p>

<p>Criminal Law—Violation or Medical Act—Instructions—Title or Act.—It is held in this prosecution for a violation of section 17 of the act of the legislature of 1913 for the regulation of the practice of medicine and surgery that there is no merit in the objection that the instructions of the court led the jury to believe that the defendant was charged with a violation of the laws of the United States; nor in the point that the title of the' act under which defendant was prosecuted is defective.</p> <p>Id.—Constitutionality of Section 8 of Medical Act.—Section 8 of said act is not unconstitutional and void in that it is an unrestricted invasion of the art of osteopathy, chiropractice and mechanotherapy in preventing practitioners of said system of the healing art from practicing their profession “without in any manner severing or penetrating any of the tissues of the human being.”</p> <p>Id.—Sections 9 and 10 of Act 'Constitutional.—Sections 9 and 10 of said act are not unconstitutional and void in that the board of examiners are vested with power to arbitrarily determine the fitness of applicants and the' standard of college's as a matter of mere personal discretion or approval, without regard to a standard of academic or scientific proficiency or exactness. It was proper for the legislature to demand some standard of proficiency, and it was equally within its power to declare that such standard shall be the one prescribed by the medical board of examiners.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title—Basements—Quitclaim Deed—Intent of Parties—Parol Evidence—Issues—Findings.—In an action to quiet title to certain easements by the successor in interest of the owner of the dominant tenement against the successor in interest of the owner of the servient tenement, parol evidence is admissible to show that a quitclaim deed of the servient land executed by the former to the latter was not intended as an extinguishment of the easements, but for t'he purpose of ending certain litigation in which the interested parties were involved; and where the trial court in making its findings ignores such evidence, and bases its findings entirely upon the legal effect and operation of the technical words “remise,” “release,” and “quitclaim” employed in the deed, there is a failure to find upon the material issue presented by the pleadings and the proof relative to the scope and effect of the deed in so far as it concerns the release and extinction of the claimed easements.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a motion for a new trial. J. P. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court. •</p>

<p>Contracts—Sale op Mine—Fraud—Evidence.—In an action to recover certain money paid under a contract for the sale of a mine, upon the ground of fraudulent misrepresentations as to the value of ore on a certain level of the mine, the court properly rejected evidence tending to show the value of the mine as a whole, and as to different parts of it, where the issue presented by the pleadings went merely to the representations concerning the value of the ore on the one level.</p>

<p>Action to Quiet Title—Pleading—Striking Out Cross-Complaint.— There is no error in striking out a cross-complaint filed for the purpose of bringing in other parties to the action, in an action to quiet title to real property and to remove a cloud from the record created by a sale of the property under an execution issued upon a judgment in an action brought by the defendant against plaintiff’s grantor, where the pleadings upon which the trial was had were sufficient to present all the evidence that could be introduced under the cross-complaint and to obtain all the relief that could have been given thereunder.</p> <p>Id.—Jury Trial—When Party not Entitled to.—In such a case where plaintiff’s possession of the property in dispute was admitted by the pleadings and the denials of the answer merely went to the allegations of ownership, the suit was one of equitable cognizance whose nature cannot be changed by affirmative defenses so as to make any difference regarding the right of trial by jury, and the defendants were not entitled to a jury trial.</p> <p>Id.—Sufficiency of Evidence—Absence of Fraud.—In this action it is held that the evidence was sufficient to sustain the findings against the claim of fraud in the transfer of the property in question.</p> <p>Id,—Fraud—When Conveyance not Fraudulent.—The mere fact that a grantor is indebted does not preclude him from conveying his property for a valuable consideration, and where there is no intent to defraud, the conveyance cannot be set aside by creditors of the grantor.</p>

<p>Criminal Law—Infamous Crime Against Nature-—-Conflicting Evidence—Bule.—In this prosecution for the infamous crime against nature, there being a conflict of testimony as to the guilt of the defendant, the sufficiency of the evidence cannot be reviewed on appeal.</p> <p>Id.—Eaudence—Prior Similar Offenses.—In such a ease evidence that, prior to the day fixed in the information upon which it is alleged that the crime had been committed, the defendant had had similar relations with the' complainant as those included within the charge upon which he was being tried, was admissible as corroborative of the main charge and as tending to show the disposition of the accused and his proneness to commit the crime of the particular nature involved.</p>

<p>Action for Damages—Breach of Contract—Payment of Mortgage Debt—Extension of Time—Unauthorized Act of Agent.—Where an owner of a tract of land and an agent, to whom the exclusive sale thereof had been given for a fixed period of years, make an agreement that the latter may, for the purpose of raising money for the building of houses upon the lots into which he has subdivided the tract, execute a mortgage on the property to run for not less than two years, and that the owner will convey the land to the agent, or to his nominee, for the purpose of making a loan, and that after the consummation of the same, the land shall be immediately reconveyed to the owner, the agent after the obtaining of the loan and the execution of the mortgage, has no authority to extend the time of payment of the loan, so- far as the owner is concerned, without the owner’s consent, and an agreement between the mortgagee and such agent for such an extension is not binding upon the owner, who may, upon the failure of the agent to pay at the original time, recover damages against him in the amount of the mortgage indebtedness, and that too without first paying the mortgage debt.</p> <p>Id.—Breach of Provision as to Street Work—Recovery of Reasonable Cost.—Where the agent also fails to perform the provision of the agreement within the designated time as to the putting in of street work, sidewalks, and curbs, the owner is entitled to recover as damages the reasonable cost of such work, notwithstanding the contract had not been terminated or forfeiture declared.</p> <p>Id.—Recovery of Damages—Right to Subsequent Performance.— In such an action it is immaterial that the agent subsequent to the payment of such damages would still have the right under his original agreement with the owner to complete the performance of his agreement as a whole and obtain conveyance to himself or others of the remaining lots of land.</p>

<p>Negligence—Action fob Damages—Personal Injuries—Evidence— ■Cross-Examination.—It is error in an action for damages for personal injuries resulting from a collision between a street-car and an automobile to sustain an objection to a question asked of one of the plaintiffs on cross-examination as to whether the car had moved fifty fee't between the moment of his giving a signal to the motorman and the time when the witness walked to the curb, or moved one hundred and fifty feet, both of such statements having been made by the witness, as this was an improper restriction of the right of cross-examination.</p> <p>Id,—Contributory Negligence—Erroneous Instruction.—In such a case an instruction to the effect that, although the' plaintiffs were guilty of contributory negligence causing the injuries sued for, the defendant would be liable for its concurrent negligence causing the injuries, even though the defendant’s motorman did not discover the dangerous position of the plaintiffs until it was too late to prevent the collision, is erroneous, as it completely destroys the right to the defense of contributory negligence.</p> <p>Id.—Doctrine op Last Clear Chance.—Notwithstanding the negligence of a plaintiff has put him in peril, yet if his danger is perceived by the defendant in time, so that by the exercise of ordinary diligence on his part injury can be avoided, the defendant will be held for the injury. But this is based upon the fact that the defendant actually knew of the danger—not upon the proposition that he would have discovered the peril of the plaintiff but for the remissness on his part. Under this rule, the defendant is not liable because he ought to have known.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Viewing Premises by Jury—Discretion of Court.— Under section 1119 of the Penal Code it is a matter committed solely t'o the discretion of the trial court whether it shall order the jury to view the premises in a criminal prosecution; and it is held under the facts of this case there was no error in refusing a request therefor.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Invalid Liquor Ordinance—Possession op Liquor—Police Power.—A municipal ordinance providing that every person having in his possession, within the city, any spirituous, vinous, malt or mixed liqiiors, or any alcoholic or intoxicating drinks, shall be deemed guilty of a misdemeanor, is not a valid exercise of the police power vested in cities by article XI, section 11, of the constitution.</p> <p>Id.—Possession With Intent to Dispose op Intoxicating Liquors.— A city may by ordinance, in the exercise of its police power, make it a misdemeanor for one to have in his possession intoxicating liquors with the intent to dispose of them for the use of others, but it has no power to declare the mere possession of such liquors to be a crime.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Property by False Pretenses—Form of Verdict.—In a prosecution for obtaining property by false pretenses a verdict finding the defendant guilty as charged in the information is sufficient, and a statement in the verdict concerning the value of the property obtained is an immaterial addition so far as the requirements of the verdict are concerned.</p> <p>Id.—Sufficiency of Evidence—Value of Property.—In such a ease where the evidence was sufficient to show that the value of the property obtained was in excess of fifty dollars, it was sufficient to sustain a verdict of conviction.</p>

<p>Execution—Supplemental Proceedings—Examination op Debtor— Sections 714, 715, Code Civil Procedure.—Under section 714 of the Code of Civil Procedure, where an execution has been returned unsatisfied in whole or in part, an order for the examination of the judgment debtor may be made without any further showing of facts, because the return of the execution itself by the officer unsatisfied pre-snpposes that search for property of the debtor on which to levy has been fruitless; but under section 715, where an execution has been issued and not returned, there must be an affidavit that the execution is unsatisfied and that the debtor has property which he refuses to apply to the satisfaction of the judgment. The examination in either case is the same; it covers the same field and is had precisely for the same purpose, to wit: Of having disclosed by an examination of the debtor some property not' exempt from execution which the judgment creditor may have subjected to sale under his execution.</p> <p>Id.—Second Examination—Discovery op New Facts.—After the judgment creditor has been given the privilege of fully examining the debtor as to the latter’s property, he cannot subject him to a second examination without disclosing to the court some new facts, such as that other facts have become known to the creditor of which he was not apprised at the former examination, or matter of like kind.</p> <p>Id.—Second Examination—When Unwarranted.—Where the affidavit for a second examination in such a case is identical with the affidavit for the first examination, except that it sets forth the fact of the defendant having withdrawn a certain amount of money from a bank, but it is not alleged that the affiant did not at the time of the first examination have full knowledge of the facts concerning the withdrawal of the money, the affidavit' is an insufficient foundation for the second examination.</p> <p>Id.—Attachment—Exemption—Salary—Section 690 Code Civil Procedure.—In such a case, where the judgment debtor made a claim under subdivision 10 of section 690 of the Code of Civil Procedure of exemption from attachment of his salary as city marshall, on the ground that he was a householder and his earnings were necessary for the use of his family, which was wholly supported by him, it was error for the trial judge to deny a motion for the release of the money from the attachment on the ground that the salary was not necessary for the purpose stated, as it appeared that the debtor had drawn from a bank the sum of one thousand five hundred dollars which had not been accounted for, where, the uncontradicted testimony of the debtor showed that the money had all been paid out by him for election expenses and litigation.</p>

<p>Foreclosure op Mortgage—Evidence—Admissions—Motion por Non-suit.—A motion for nonsuit, in a suit to foreclose a mortgage, based upon the ground that plaintiff had failed to adduce evidence of the assignment of the note and mortgage, was properly denied, where the due execution and delivery of the note and mortgage and the due assignment thereof to plaintiff, all alleged in the verified complaint, were undenied by the unverified answer, as the admission of these facts rendered it unnecessary to offer any of the said documents in evidence.</p> <p>Id.—Consideration—Sufficiency op Evidence.—In this suit to foreclose a mortgage, it is held that the evidence was amply sufficient to sustain the finding of the trial court that the consideration for the execution and delivery of the note and mortgage in suit was the sum of five hundred dollars, and that the sum of three hundred dollars with interest thereon only had been paid.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Principal and Agent—Secret Profit—Agent not Entitled to.—That an agent may not, as such, make a secret profit out of a transaction wherein he represents his principal, is a rule universally recognized and has no exception.</p> <p>Id.—Action to Eeoover Secret Profits—Motion for Nonsuit—Construction of Evidence.—In an action by a principal to recover secret profits received by the agent on a transaction for t'he principal, on a motion for nonsuit all inferences fairly dedueible from the evidence and tending to establish the relation must be considered as facts proven in favor of the plaintiff; and it is held in this ease that the evidence was sufficient to show the relation of principal and agent between the plaintiff and defendant in the transaction involved, and that the motion for nonsuit should have been denied.</p> <p>Id.—Statute of Limitations—Action for Fraud—Section 338 Code Civil Procedure—Pleading—Discovery.—Section 338 of the Code of Civil Procedure provides that an action for relief on the ground of fraud must be brought within three years, but also provides that such action shall not be deemed to have accrued until discovery by the aggrieved party of the facts constituting the fraud; and in such an action an allegation in the complaint that the plaintiff but recently, to wit: on a certain date discovered that the representation made to her by the defendant was false, fraudulent, and untrue, and she had not until within the said time discovered the fraud and deceit practiced upon her, is a sufficient averment of want of discovery of the facts constituting the fraud prior to the time alleged; especially where it appears that the plaintiff was at all times a nonresident of the state.</p>

<p>Negligence—Action eob Damages—Pebsonal Injuries—Nonsuit.— In this action for damages for personal injuries alleged to have been occasioned to plaintiff as an employee of the defendant through the negligence of the latter, it is held that the court properly granted a nonsuit as t'o the second cause of action, based upon the claim that the place where the plaintiff was directed and required to work was not a reasonably safe place in which to work, because the evidence showed that plaintiff as an experienced electrician was well aware of all the dangers of the particular place in which he was employed at the time of the accident; but that the court erred in granting a nonsuit as to the first cause of action, as both the complaint and the evidence were sufficient to show the fact of plaintiff’s employment by the defendant, both at the commencement thereof and at the time the plaintiff received his injuries, and that the injuries were occasioned by the negligence of an employee of the defendant superior in authority to plaintiff.</p>

<p>Criminal Law—Murder—Evidence—Interlocutory Decree of Divorce.—In a prosecution for murder of a wife by her husband, where the theory of the prosecution was that the killing was willful and deliberate and that the motive was founded in the fact that the community property of the deceased and the defendant had been awarded to the former by an interlocutory decree in divorce proceedings which had been instituted by her against the defendant upon the ground of the latter’s extreme cruelty, proof of the pendency of the divorce proceedings was admissible because it tended in a measure to show the state of feeling existing between the parties at a time prior to the homicide, but it was error to admit the decree in evidence for all purposes. Such ruling, however, was without prejudice, although the decree declared the defendant had been guilty of extreme cruelty toward the deceased, where the record shows that there was an abundance of other evidence to the effect that defendant had been guilty of repeated acts of physical cruelty and brutality toward the deceased.</p> <p>Id.—Witnesses—Child of Tender Years—Competency of—Burden of Proof.—The burden of showing the ineompeteney of a child as a witness, within the meaning of section 1880 of the Code of Civil Procedure, was upon the defendant, and in the absence of an affirmative showing of an abuse of discretion, the determination of the trial court as to the competency of the witness is conclusive on appeal.</p> <p>Id.—Improper Questions—Waiver of Objection.—Objection that certain questions asked of witnesses were suggestive and called for conclusions is waived where the record shows that no objection was made to the questions until they had been answered and no motion to strike out made.</p> <p>Id.—III Treatment of Deceased By Defendant—Remoteness of Time,—The trial court did not err in permitting evidence of defendant’s ill treatment of the' deceased some four or five years prior to a reconciliation which it appears had been effected between them, as the remoteness of the defendant’s conduct in this behalf in reference to the reconciliation was an objection which went to the weight of the evidence rather than to its admissibility.</p> <p>Id.—Homestead Property—Judgment Vesting Same in Dependant— Admission oe Nonprejudicial.—In such a case, while the materiality of a judgment, obtained on the petition of the defendant', adjudicating the death of the deceased and vesting the title to homestead community property in the defendant, does not appear, its admission could not have prejudiced the defendant, where it uncontradietedly appeared that the procurement of the judgment was prompted by the necessity of clearing the title to the property to secure a loan to pay debts of the defendant and deceased.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Yolo County and from an order denying a new trial. W. A. Anderson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action fob Damages—Negligence—Violation op Law—Proximate Cause op Injury.—Where a tort is the direct result of the violation of some statutory or other law, and the party suing for damages relies upon the infraction of such law for a recovery, it must be made to appear and the court must so instruct the jury that, before a recovery in such case is sustainable, the act of the defendant in violating such law was the proximate or direct cause of the tort or injury; and it is also the duty of the court to state to the jury all the conditions to which such law subjects both the plaintiff and the defendant with respect to the performance of the duties therein prescribed to them.</p> <p>Id.—Personal Injuries—Instructions—Proximate Cause op Injury.—In an action for damages for personal injuries sustained by the rider of a bicycle on a public highway from being run over by a passing automobile, an instruction to the jury that if they should find from the evidence that the plaintiff while free from negligence was riding his bicycle along the highway and upon the right-hand side thereof, and that the defendant overtaking him attempted to pass him upon his right-hand side, and in so attempting collided with him and thereby injured him, that the defendant was negligent and responsible for the injuries, is not objectionable by reason of the omission to state in terms that before the jury was warranted in finding against the defendant, it must have appeared to their satisfaction from the evidence that the attempt of the defendant to thus pass the plaintiff on the right was the proximate cause of the injury, or by reason of the omission to state, as the statute prescribes, that it is the duty of a person “riding or driving a horse or horses ... or any other vehicle” on a public highway and overtaken by the driver of a motor vehicle, as soon as practicable, to “turn to the right so as to allow free passage on the left.”</p> <p>Id.—Instructions—Construction of as a Whole.—All the limitations, qualifications, or conditions which must ordinarily accompany the statement of principles of law to a jury in a particular case cannot be given in one sentence, nor in one paragraph, nor in a single instruction, and where they are found properly stated in the general charge of the court, the cause will not be reversed even though in isolated passages there is an omission to state them.</p> <p>Id,—Negligence of Defendant—Verdict Supported by Evidence.—In this action it is held that there is ample evidence to sustain the verdict that the defendant was guilty of negligence in operating his automobile at a rate of speed in excess of that fixed by the statute, or at any rate at a greater speed than was reasonable and proper considering the narrowness of the highway and extent of traffic thereon.</p> <p>Id.—Appeal—Conflicting Evidence.—Where there arises a substantial conflict in the evidence which is not inherently improbable and which is capable of supporting a finding either way, the determination by the jury or trial court of the effect of such evidence is final and conclusive and not open to review.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County and from an order denying a new trial. William A. Beasley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Quiet Title—Delivery of Deed—Sufficiency of Evidence. In this action to quiet title it is held that the evidence was sufficient to sustain the finding as to the making, execution, and actual delivery of the deed to plaintiff by her father, upon which deed plaintiff based her right to the property.</p> <p>Action Under McEnerney Act—When Party not Compelled to Appear in.—The plaintiff herein was not bound to inject herself into a suit brought by her father under the so-called McEnerney Act, in which she had not been made a party, but from which she had been apparently designedly omitted, in order to obtain the equitable relief to which she was entitled.</p> <p>Id.—Fraud—Sufficiency of Evidence.—It is held further in this case that the evidence was sufficient to support the finding of the trial court that the plaintiff’s grantor acted at least constructively fraudulently in instituting a proceeding to quiet his title under the so-called McEnerney Act.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Action on Building Contract—Parties—Appeal—Insufficient Becord.—In an action by an assignee of the contractors upon a building contract to recover a balance alleged to be due, an order of the trial court denying a motion for an order bringing into the action certain materialmen and laborers who served upon the defendant the notice provided in section 1184 of the Code of Civil Procedure to the effect that tney had performed labor and furnished material to said contractors during the course of construction of the building, cannot be reviewed on appeal where the record does not show that the defendant took exception to the order, or prepared any bill of exceptions showing what papers or other evidence were used by the trial court on the hearing of the motion, and there is no proper certification of them as being the papers and evidence so used, as, required by rule XXIX of the appellate court.</p> <p>Id.—Evidence—Findings.-—In such a case the contention that the court erred in the receipt of evidence and in its finding that the building was constructed and completed in accordance with the plans and specifications, cannot be sustained, where no issue was raised by the pleadings as to the sufficiency and proper execution by the parties of the plans and specifications, but the case was apparently tried upon the theory that this was the fact.</p> <p>Id.—Eight to Withhold Monet—Failure to Find upon—When not Error.—There was no error in the court’s failure to find the amount of claims which the answer alleged were due by the plaintiff’s assignors to the materialmen and laborers, or in refusing to permit appellant to withhold the same, where the record fails to show that there was any money due to any of said materialmen or laborers at the time the ease was tried; and in view of the record it must be assumed that no proof was offered on this issue and no findings were required.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Contract—Eight to Possession or Property—Conditional Payments—Construction op Contract.—In this action by a trustee in bankruptcy to recover for the benefit of creditors the possession of certain wood cut and charcoal burned by the bankrupt on the defendant’s land, it is held that under the contract involved, the plaintiff was not entitled to such possession upon the mere payment' of the amount due for stumpage,. but only upon the payment in addition thereto of the amount of damages sustained by the defendant by the failure of the bankrupt to perform certain other covenants of the contract, which constituted a part of the consideration for the cutting of the wood and the burning of the charcoal.</p>

<p>Negligence—Amendment During Trial—Discretion not Abused.— Where in an action against a street-railroad company to recover damages for the death of plaintiff’s husband, the right to recovery is based upon the general allegation that the defendant was careless and negligent in the running and operation of its car at the time and place of the accident, it is not error to permit the plaintiff at the trial and during the presentation of her proofs to amend her complaint by adding to both counts thereof an averment to the effect that the car had attached to it a fender for the purpose of picking up persons who were knocked down, and that at the time of the injury to the deceased the fender was up against the car in a position where it would not operate and pick up deceased or save him from injury, notwithstanding it was also’ stated in the first count that the car was being operated at great speed, and in the second count that the car was so operated after the discovery of the deceased in Ms position of danger.</p> <p>iu.—Contributory Negligence—Conflict of Evidence—Question for Jury.—Where in such an action the evidence is clearly conflicting as to the speed at which the defendant’s ear was going at and immediately before the moment of the accident, and also as to whether any warning signal of its approach was given, it is for the jury to say whether the deceased was guilty of contributory negligence in failing to observe the approach of the ear and to remove himself from its pathway.</p> <p>Id.-—Grossing of Tracks—Duty of Pedestrian—Instructions.—In such an action it is not error to modify an instruction requested by the defendant that “in eases of this character the correct rule of law is that one riding or walking along or across the tracks of a street-railroad company must use reasonable care in the exercise of his faculties of sight or hearing to watch or listen for ears going in either direction,” by stating that “in cases of this character the correct rule of law is that one riding or walking along or across the tracks of a street-railroad company must use reasonable care and precautions for his own safety.”</p> <p>Id.—Position of Pender—Instruction—Special Issues.—Where in such an action special issues were not submitted or requested to be submitted to the jury, it is not error to refuse to instruct them that even if they should find that the fender was not in a proper position at the time of the accident, their verdict on the issue of the position of the fender must be in favor of the defendant, unless the evidence shows that if it had been in proper position it would have prevented or mitigated the injury.</p>

<p>Contract—Sale of Land—Security of Vendor—Attachment.—Under a contract for the sale and purchase of real property, where the vendor retains title to the property until all payments are made, he has security for the purchase price, and is therefore not entitled to an attachment in an action to recover an unpaid balance on the contract.</p>

<p>APPEAL from a judgment of the Superior Court of Napa County and from an order denying a new trial. Henry C. Gesford, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Judgment—Revival of—Wbit of Scibe Facias.—An order, in a proceeding under a scire facias asking for a revival of a judgment in conformity with the laws of the state of Illinois, where the judgment was obtained, to the effect that the judgment against the defendant be revived and stand in full force and effect as at the time of its rendition, and that the holder thereof have execution thereon against the defendant, is in fact a judgment—a final determination of the rights of the parties.</p> <p>Id.—New Cause of Action—Statute of Limitations.—In such a case the judgment revived by scire facias constitutes a new cause of action, upon which the statute of limitations begins to run from its rendition, and under section 336 of the Code of Civil Procedure, an action thereon is not barred until five years.</p>

<p>Pleading—Demurrer to Complaint—Amended Complaint—Waiver op Error.-—Where an original complaint is superseded by an amended complaint, error, if any, of the court in not sustaining defendant’s demurrer to the original complaint becomes immaterial, and will not be reviewed upon appeal, unless it should appear that the court erred in permitting such amendment for the reason that a new cause of action was sought to be substituted for that set forth in the original complaint, and against which the statute of limitations had run.</p> <p>Id.—Amended Complaint—Statement op Same Cause op Action.— Where an original complaint counted upon a claim for a certain sum of money alleged to be due as the agreed price of a certain moving picture film service, and an amended complaint counted upon a claim for a lesser sum alleged to be due as the reasonable value of said moving picture film service, no new cause of action was stated by the amended complaint, as the amendment changing the count from one upon an express contract to one on a quantum meruit, did not have the effect of substituting a new cause of action.</p> <p>Id.—Findings—Responsive to Issues.—It is held in this action that the findings are responsive to the issue presented by the pleadings and that the finding of the trial court that an oral agreement between the parties and one in writing subsequently executed constituted a single transaction, disposes of the contention of the appellant that ho should have been allowed a certain offset upon the theory that his default in payments was prior to the written agreement, and that the latter could not be rightfully terminated for failure of the appellant to pay his old bill.</p>

<p>Action on Promissory Note—Evidence—Admissions op Answer—Due Execution and Nonpayment.—In an action upon a promissory note, where the answer does not deny the execution of the note, no evidence thereon is necessary; nor is it necessary to introduce the note in evidence to prove its nonpayment, as the burden of proof of payment is upon the defendant, although nonpayment must be alleged in the complaint.</p> <p>Id.—Consideration—Surrender of Old Note.-—A note executed by the owners of all the stock of a corporation in consideration of the surrender of another note executed by the corporation is supported by a sufficient consideration, as the stockholders are personally liable under our statute for payment of the corporation’s note; and an agreement at the time of the surrender of the old note on the part of the payer to forbear to sue until the maturity of the note is also a sufficient consideration.</p> <p>Id.—Evidence—Harmless Error.—In such a case the exclusion of a ledger from evidence, if error, is harmless, where a witness who knew all about the transactions recorded therein testified fully concerning them, using the ledger to refresh his memory.</p>

<p>Attachment—Motion to Dissolve—Defective Affidavit—Amendment.—It is error to dissolve an attachment upon the ground that the affidavit therefor omitted to state that the defendant was a nonresident of the state, where the court before granting the motion had permitted the affidavit, pursuant to section 558 of the Code of Civil Procedure, to be amended to cure the defect.</p> <p>Id.-—Action for Breach of Contract—Attachment.—An action to recover, in the form of damages for breach of contract, certain commissions, at a specified percentage, which the plaintiff would have earned had- the contract not been broken by the defendant, is not an action ex delicto, but one arising out of contract and in which an attachment may issue.</p>

<p>Judgment—Motion to Set Aside Default—Partnership—Service of Summons—Sufficiency of.—A return of service of summons, in a suit against a partnership, showing service upon an individual defendant, although not affirmatively declaring that he was a member of the partnership and sued in that capacity, is sufficient upon which to base a default judgment against the partnership, where the complaint in the action, a copy of which was served with the summons upon said defendant, shows that he was sued-individually, and alleges that he was a member of the partnership joined as defendant under the firm name.</p>

<p>Pleading—Amendment—Waives op Right to Object to Previous Error.—An. amendment to any pleading after a demurrer is sustained thereto is a waiver of the right to object to any error in the sustaining of such demurrer.</p>

<p>APPEAL from an order of the Superior Court of San Benito County denying a motion for a change of place of trial. George H. Buck, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Findings—Conflicting Evidence.—The findings of the trial court will not be disturbed on appeal where the evidence upon which they are based is conflicting.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Findings—Conflicting Evidence.—The findings of the trial court will not be disturbed on appeal where there is a conflict in the evidence upon which they are based.</p>

<p>Promissory Note—Execution in Blank—Insertion of Payee's Name —Findings—Evidence.—In an action upon a promissory note, in which the defense was that the note was executed in blank as to the name of the payee and delivered to an agent with limited authority to borrow the amount for which it was drawn from a particular person, but the agent exceeded his authority in procuring •the loan from another person and inserting her name in the note, where the evidence was conflicting upon this issue, the findings of the trial court in favor of the plaintiff will not be disturbed on appeal.</p> <p>Id.—Transfer of Note—Sufficiency of Evidence.—Where the original payee of the note testified that she sent the note duly indorsed to her attorney with instructions to deliver it to the plaintiff for collection and that she knew that plaintiff had received it/ and plaintiff produced the note in court and delivered it up for cancellation, the evidence is sufficient to sustain a finding that the note was transferred to plaintiff prior to the institution of the action, and the weight of this evidence was not affected by the fact that the attorney for the plaintiff was also attorney for the original payee.</p>

<p>Contracts — Consideration — Agreement to Forbear to Enforce Claims.—There is a sufficient consideration for an oral agreement between a general contractor and its creditors, including a subcontractor who had furnished to the general contractor the necessary plumbing on two certain jobs, providing that if the general contractor would file the necessary liens and commence suit against its debtors for the recovery of moneys due it, and would pay the several amounts due to each of said creditors, the sub-contractor and the said creditors would not file any liens against the properties owned by the debtors of the general contractor, nor commence any suit at law for the amount of their claims while the contractor was enforcing such collections, in consideration of the latter paying the necessary attorney’s fees, costs, and disbursements in the prosecution of such suits, and in devoting time to the enforcement of the same.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tuba County and from an order denying a motion for a new trial. Eugene P. McDaniel, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Evidence—Statement of Defendant.—When one part of a statement made by a defendant in a criminal action has been introduced as evidence against him, it is his right to have in evidence the entire statement, including any part of his declaration that would be in his favor.</p> <p>Id.—Murder—Evidence—Interview Admitting Killing—Subsequent Denial—Single Transaction.—-In a prosecution for murder, where there is at issue the question as to whether -the deceased came to her death by the unlawful act of some person other than herself, and the question as to whether she was killed by the defendant, in the event of an affirmative answer to the first question, and the chief deputy district attorney is permitted to -testify as to an interview had in the city jail between him and the defendant in the presence of the arresting officers and other persons, including a stenographer, whose transcribed notes were followed by the witness in giving his testimony, from which it appeared that the defendant after first denying-the killing, admitted that he had killed the deceased by chloroforming her, it is prejudicial error to refuse tho defendant the right to cross-examine the witness as to a denial of the killing made by the defendant within five minutes thereafter in a cell to- which the parties had adjourned, on the ground that such denial was not a part of the original conversation.</p> <p>Id.—Evidence—Identity of Defendant—Erroneous Exclusion.—In such a prosecution it is error to refuse to allow a witness, who testified as to having observed a struggle between a man and woman on the night of the crime near the place where the body was found, to say whether the defendant was the man.</p> <p>Id Evidence—Suicidal Threats of Deceased—Exclusion Erroneous. In such a prosecution it is error to refuse to permit the defendant to prove by an intimate acquaintance of the deceased that the deceased had made threats of committing suicide.</p> <p>Id.—Admissibility of Evidence of Suicidal Threats.—It is essential before a defendant can be found guilty of murder, that it first be established that the death has been brought about by criminal agency, and this agency must be shown to be other than the act of the person who has been killed; and statements made by Ithe deceased, indicating an intention to commit suicide, 'do not come within the rule which would exclude statements made by her concerning past occurrences, such as past quarrels if any there had been between her and the accused; but such statements relate to a state of mind of the deceased, which might raise a probability that she was disposed toward self-destruction, and thereby, in connection with the proved circumstances of her death, might suggest a probability that she did kill herself.</p> <p>Id.—New Trial—Newly Discovered Evidence—Insufficient Showing of Diligence-Presence in Jail.—A new trial on the ground of newly discovered evidence should not be granted, where the principal excuse urged for want of diligence in procuring the evidence on the trial, weis the fact that the defendant was in jail.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Yolo County. N. A. Hawkins, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Promissory Notes—Judgment on Pleadings—Construction op Contract—Insufficiency of Defense.—In this action upon promissory notes, it is held- that a certain agreement which defendant contends extended the time of payment of the notes beyond the date of the commencement of the action so as to support the claim and plea that the action was prematurely brought, does not bear such construction, and the court properly granted plaintiff’s motion for a judgment on the pleadings.</p> <p>Id.—Extensions of Time of Payment—Definite Time Essential.— Extensions of time of payment of promissory notes must be for a definite time in order to be valid.</p> <p>Id.—Pleading—Nonpayment—Insufficient Denial.—Where the complaint expressly averred the nonpayment of the notes and the defendant did not negative the averment except by the denial in his answer that there is not now due any sum or amount whatever, the denial was insufficient to put in issue the payment of the notes, as it was a mere conclusion of law.</p> <p>Id.—Continuance—Time to Amend Pleadings.—Defendant’s contention that he should have been granted time by the court to amend his pleadings is sufficiently answered by the fact that he presented no application to the court for permission to make such an amendment either before or after the motion for judgment on the pleadings was submitted to the court for decision.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Praneiseo and from an order denying a new trial. J. J. Trahucco, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Certiorari directed against the Superior Court of Del Norte County and the Honorable John L. Childs, Judge thereof. The facts are stated in the opinion of the court.

<p>Action fob Money Loaned.—In an action to recover money alleged to have been loaned by the plaintiff to the defendant, in which the evidence showed that plaintiff advanced the money to one who was engaged to marry the defendant, to pay for a house to be occupied by them after marriage, a promissory note being executed therefor ■by defendant to the sister of the lender, who also loaned the defendant money on similar representations, the note, which' included both loans, being taken in her name for convenience, the testimony of plaintiff that the defendant sent his prospective wife to her for the money was sufficient evidence to sustain a finding and judgment against the defendant, where the defendant did not deny this statement and plaintiff was not cross-examined as to the source of her knowledge upon the point.</p> <p>Id.—Pleading—Joinder of Causes and Parties.—In such a case the defendant cannot complain of the joinder with him as defendant of the payee of the promissory note or of a second cause of action for an additional amount loaned by plaintiff to defendant, where the only purpose of joining said party with the defendant was that she might be brought into court in order that the note taken in her name, admittedly for the loan to plaintiff, might be canceled and the defendant thereby relieved from his obligation to pay the same.</p> <p>Id.-—Garnishment of Payee—Insufficient Defense.—The fact that a garnishment was served upon the maker of the note, in an action against the payee, is no defense to the action for the money loaned.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. J. P. Wood, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. James M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Ordinance—Street Sprinkling by Bailroad Corporations —Valid Exercise op Police Power,—An ordinance of the city of Sacramento requiring every person, firm, or corporation, owning, controlling, or operating any street railroad, suburban railroad, or interurban railroad, upon and along any of the streets of the city, to sprinkle with water the surface of the street occupied by such railroad between the rails and the tracks and for a sufficient distance beyond the outermost rails thereof so as to effectually lay the dust and prevent the same from arising when the ears are in operation, during the months of June, July, August, September, and October of each year, and without cost to the city, is a valid exercise of the police power of the municipality.</p> <p>Id.—Police Power—Nature and Extent.—The constitutional grant of police power is only limited to regulations not in conflict with general laws, and it embraces the right to regulate any class of business the operation of which, unless regulated, may, in the judgment of the appropriate local authority, interfere with the rights of others, and is not confined to the regulation of only such interferences with the public welfare and comfort as come strictly within the common-law definition of a “nuisance.”</p> <p>In.-—Street Sprinkling—Police Power.—The sprinkling of streets so as to effectually lay the dust is demanded by considerations of health and comfort, and it is a just and equitable regulation and discrimination to impose the burden of such remedial measure upon the agency producing the inconvenience, discomfort and menace to the health of the community.</p>

<p>Indemnity Insurance—Policy to Partnership—Dissolution—Agreement op Partners—Secret Belease by One Partner—Knowledge op Insurer—Liability to Other Partner.—A casualty company which has issued to a copartnership, as an employer, a policy of insurance indemnifying it against loss for damages to its servants, is liable to one of the partners, after the dissolution of tho partnership, for the amount of a. judgment obtained against the .partnership for damages for the death of one of its servants, paid by such partner, notwithstanding that after the dissolution of the partnership and prior to the payment of the judgment, the insurance company secretly obtained the surrender and cancellation of the policy from the other partner and compromised its liability thereunder, in consideration of a certain sum, where it is shown that such company prior to the making of such settlement with such partner had notice of the agreement of the partners made upon dissolution, that the policy should be continued in force to protect them from any liability in the action in which the judgment was paid.</p> <p>Id.—Knowledge op Dissolution Agreement—Finding Supported by Evidence.—In this action, it is held that the evidence is sufficient to justify the finding that the defendant had notice of the dissolution agreement between the partners as to the holding of the policy.</p> <p>Id.—Appeal—Decision op District Court op Appeal—When Final.— When an appellant ceases to pursue his appeal from one appellate court to a higher, though he might do so, the decision of the court where he sees fit to rest is a final one.</p> <p>Id.—Partnership—Powers upon Dissolution.—Upon the dissolution of a partnership each member thereof, in the absence of an agreement to the contrary, has the same right and authority to collect, compound, and release the debts of the firm existing at the time of such dissolution; such members, however, may by agreement restrict such right and commit the liquidation of its affairs, or any part thereof, to one or more members.</p> <p>Id.—Knowledge op Dissolution Agreement by Insurer—Law op the Case.—In this action to recover upon a policy of indemnity insurance it is held that the decision on the former appeal of this case, (12 Cal. App. 462), to the effect that if the defendant had notice of the making of the agreement between the partners upon the dissolution of the partnership as to the continuance of the policy in force, its compromise with one of the partners without the knowledge or consent of the other partner, constituted no defense to the action, is the law of the case, notwithstanding the appellant made no application for a hearing in the supreme court after said decision.</p> <p>Id.—Debtor With Contingent Liability—Effect of Knowledge of Continuance.—Where a debtor whose liability to the firm is contingent has notice of an agreement made between the partners that such liability shall not be released or compromised by either without the consent of the other, such debtor in dealing with one partner contrary to the agreement, acquires no rights against the partnership.</p> <p>Id.—Payment of Judgment—Promissory Notes—Construction of Policy.—Payment of a judgment against the partnership by the promissory notes of the partner promising to pay the full amount of the judgment in annual installments, is payment within the meaning of the provision in the policy that “no action shall lie against •the company as respects any loss under this policy unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue.”</p>

<p>Criminal Law—Bribery—Immunity of Prostitutes from Arrest— Accomplices—Prejudicial Instruction to Jury.—In the prosecution of a city marshal for receiving a bribe upon the understanding and agreement that he would not arrest certain women of ill repute who were residing in and “plying their trade” in the city, the women who testified as to contributing the money are accomplices, as well as the witness who testified to the collection of the money from them and its payment to the defendant, and it is prejudicial error to refuse to so instruct the jury, at the request of the defendant, where the corroborative testimony is not of a particularly strong character.</p> <p>Id.-—Evidence—Collection of Money as Pines—Authority of Board of Trustees—Exclusion of Proof Erroneous.—In such a prosecution it is error to refuse to permit the defendant to supplement his testimony, that all of the money that he had collected from such . women was in satisfaction of fines imposed and had been paid by him into the city treasury, with the statement that such action was at the instance and by the direction of the trustees of the city.</p> <p>Id.—Innocence óf Defendant—Evidence—Modification of Bequested Instruction—Prejudicial Error.—In such a prosecution, where the state had been allowed to introduce testimony to show the giving of money at various times to the defendant by persons of ill repute for the purpose of securing immunity from arrest, it is prejudicial error to modify an instruction requested by the defendant that “the law presumes the defendant to be innocent of the commission of any crime and this presumption continues in his favor throughout the trial of the case,” by making it read as follows: “The law presumes the defendant to be innocent of the commission of the crime charged in the indictment and this presumption continues in his favor throughout the trial of the case.”</p>

<p>Taxation—Notice of Sale—Publication and Mailing—Section 3897, Political Code.—Section 3897 of the Political Code requires that the tax-collector, as a prerequisite to a valid conveyance by the state of property purchased by it for delinquent taxes, shall cause a notice of such sale to be published for three successive weeks prior to the date fixed for the sale, and shall mail a copy of said notice, postage thereon prepaid and registered, to the party to whom the land was last assessed next before the sale, at his last known post-office address, and the copy of the notice required to be published must, where the name of the party to whom the property was last assessed is known, be mailed at least three weeks before the sale.</p> <p>ID.—Insufficient Notice—Void Sale and Deeds.—A sale for delinquent taxes and deeds made pursuant thereto is void where the recital in the deed does not purport to state that the notice was mailed to the last known post-office address of the party to whom the land was last assessed, nor state any fact constituting any excuse for failure to comply with this requirement, and also affirmatively shows that, while the party to whom the land was assessed was known, the copies of the notice were mailed to him within a period of less than three weeks prior to the making of the sale.</p> <p>Id.—Notice of Sale—Actual Notice Insufficient.'—Actual notice of the time fixed for such a sale cannot be deemed a substitute for the statutory requirement, and a receipt signed by the owner of the property showing that he received the registered envelope inclosing a copy of the notice mailed to him at a time less than the statutory period before the sale, is properly excluded from evidence, as it does not show a compliance with the statute, without which the tax-collector has no authority to make the sale.</p> <p>Id.—Former Decision—When not Law of the Case—Different Points.—In such a case a former decision of the supreme court involving the same tax proceedings does not constitute the law of the case in this action where the former decision was on different points than those involved here.</p>

<p>Eminent Domain—Condemnation of Land fob Railroad Purposes—. Abandonment of Action — Costs — Attorney’s Pees — Section 1255a Code Civil Procedure. — Section 1255a of the Code of Civil Procedure provides that upon the abandonment of an action for the condemnation of land the defendant shall be awarded his costs and disbursements, which includes all necessary expenses incurred in preparing for trial and reasonable attorney’s fees, which costs may be claimed by a cost-bill to be served, filed, and , taxed as in civil actions.</p> <p>Id.—Motion to Retax Costs—Grounds of Motion.—"Where the defendant claimed his costs by filing a verified memorandum thereof, including attorney’s fees in this ease and clerk’s fees in a mandamus proceeding to compel the judge to try the ease, and plaintiff gave notice of motion to strike those items from the cost-bill, upon the sole ground that they were “unlawful and not properly taxable as • costs,” the motion should be confined to these grounds solely, and the party cannot maintain that the fees were excessive, not having objected on that ground.</p> <p>Ib.—Evidence—Affidavit to Memorandum of Costs—Sufficiency of. "Where the memorandum of costs was verified and was not contradicted by evidence offered by plaintiff, it was error for the court to require defendant to produce further evidence in support of the facts established by the affidavit, that the attorney’s fees claimed were proper and reasonable in amount for the services performed, as the affidavit was sufficient prima facie for such purpose.</p> <p>Id.—Clerk’s Fees—Mandamus Proceeding—Improper Item.—The fee of the clerk of the district court of appeal for filing a mandamus proceeding to compel the trial judge to try the case was not allowable, and was properly stricken from the cost-bill, because the action in which it was incurred was not an action or proceeding against the plaintiff, or for which costs could be taxed against it.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Depositing Explosives in Building—Sufficiency of Information.—An information under section 601 of the Penal Code charging that the defendant at a certain time and place did “willfully, unlawfully and maliciously put, place and deposit giant powder in that certain building known as Harry T. Cole’s cabin or dwelling-house, near Weitchpee, county of Humboldt, state of California, with the intent to injure, intimidate and terrify human beings,” is sufficient without alleging that the building was a place “where human beings usually inhabit, assemble, pass or repass.”</p> <p>Id.—Construction of Section 601, Penal Code.—Under section 601 of the Penal Code a crime may he committed in the use of dynamite at places where human beings do not inhabit, assemble, pass, or repass, and this section contemplates and provides for such cases.</p> <p>Id. — Statutory Construction — Object of Statute. —In construing statutes, the object to be accomplished by the act is to- be ascertained and its provisions considered and so construed, if possible, that all its parts may have the effect and operate harmoniously to effectuate that object.</p> <p>Id.—Object of Section 601, Penal Code.—The “object” intended to be accomplished by the legislature in the passage of section 601 of the Penal Code was to deter people from the unlawful use of dynamite in injuring and destroying property and also in injuring or intimidating human beings.</p> <p>Id.—Protection of Property and Human Beings.—Section 601 of the Penal Code was passed to protect property as well as human life, and the words therein “where human beings shall inhabit,” ete., were not intended to qualify the words “building, vessel, church,” etc., hut only to qualify the words “or other place.”</p> <p>Id.—Intent to Destroy Building.—Maliciously placing dynamite in a building with intent to injure or destroy it, without any intent to injure or intimidate a human being, is made a crime by said section.</p> <p>Id.—Sufficiency of Information—Failure to Allege Intent to Injure Particular Person.—In such a ease the failure of the information to charge an intent on the part of the defendant to injure any particular human being does not render it defective.</p>

<p>School Law—-Contracts—Discharge of Principal of High School— Claim for Salary—Authority of Trustees to Compromise.—Under subdivisions 20 and 21 of section 1617 of the Political Code, the board of trustees of a Union High School district is invested with the power to compromise a disputed liability of the district arising out of the discharge of a principal of the high school and this power is not limited to the sum of one hundred dollars under clause 3 of subdivision 20 of said section.</p> <p>Id.—Limitation of Powers of Board—Vote of Electors of District. The -only limitation upon the powers of boards of school trustees to compromise threatened litigation against their district is that created through the holding of a meeting of the qualified electors of the school district called as provided in section 1617 of the Political Code; and which, when assembled, could instruct such board in relation to the compromise of pending or threatened litigation, and in connection with such instruction might vote a limited sum to be devoted to such compromise as the meeting approved.</p> <p>Id.—Unearned Salary-—Breach of Contract—Damages.—It is immaterial that th.e compromise agreement was entered into before the school term began, and hence before any salary was due to the plaintiff for actual teaching done or offered to -be done, where the court finds that the principal suffered certain specified damages from the repudiation of his contract by the board.</p> <p>Id.—Defects in Warrant—Waiver of.—Alleged defects in the warrant for the compromise amount should have been made when it was presented for approval, and where not then made or upon the return of an alternative writ of mandamus to compel its payment, or at the hearing thereon, the objection is too late on appeal for the first time.</p> <p>Id.—Obtaining Other Position—Mandamus.—There is no merit in the objection that the writ of mandamus to compel payment of the warrant for the amount of compromise should not have been issued •because, after the compromise was effected and the petitioner received his warrant, he succeeded in making a contract with another school district for his employment during the year.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Dismissal of Appeal—Failure to File Transcript.—An appeal from a portion of a judgment must be dismissed under rules II and V of this court, where it appears that no bill of exceptions or other record on appeal has been filed, or request made to the clerk to certify to any transcript of the record of the case, and no transcript or any record has been filed with the appellate court.</p>

<p>Divorce—Custody of Children—Modification of Order—Notice of Intention to Appeal—Habeas Corpus.—The filing of a notice of intention to appeal from an order made in an action for divorce modifying a previous order relating to the custody of the children of the marriage, is ineffectual for any purpose; and where between the time of such filing and the time of the filing of a notice of appeal, habeas corpus proceedings are instituted, such orders are superseded until such proceedings are finally determined.</p> <p>Id.—Contempt of Court—Disobedience to Order—Advice by Attorney to Client—Mistaken Opinion as to Effect of Appeal.—An attorney at law who advises and assists his client to refuse to comply with the terms of such a modified order under the belief that the appeal taken therefrom stayed all further proceedings affecting the custody pending the appeal, is guilty of contempt of court.</p> <p>Id.—Sufficiency of Affidavit—Liberal Construction.—Where in a proceeding for such a contempt, the accused appears in person and is given full opportunity to be heard and interposes no objection to the sufficiency of the affidavit upon which the proceeding is based, such affidavit should be given a liberal construction.</p> <p>Id.—Hearing of Proceeding—Judge not Disqualified.—A judge to whom is presented an affidavit showing contemptuous conduct toward his court is not disqualified, under section 170 of the Code of Civil Procedure, to hear and determine the proceeding.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Election Contest—Office of Superior Judge—Acts in Violation of Purity of Election Law—Findings Conclusive.—In this contest of the election of a judge of the superior court based upon the declared ineligibility of the contestee by reason of certain acts of moral turpitude in violation of the purity of election law and of the fact of his defeat for the nomination at the primary election, it is held, that while some of the acts set out in the findings were of questionable propriety and likely to inspire a degree of distrust and suspicion on the part of the law-abiding and upright citizens of the community, it cannot be said that they are entirely irreconcilable with freedom from moral turpitude, and therefore, under the familiar rule, the court is bound by the conclusions of the trial judge.</p> <p>Id.—Defeated Candidate at Primary Election—Writing in of Name on Ballot—Bight of Voter.—While a candidate for the office of superior judge who is defeated for the nomination at the primary election cannot have his name printed on the official ballot, his name may be written upon the ballot by the voters.</p> <p>Id.—Candidate for Judicial Office—Construction of Direct Primary Law.—The provision of section 23 of the Direct Primary Law (Stats. 1913, p. 1404) that in case there is but one person to •be elected at the general election to a judicial office, any candidate who received at the primary election a majority of the total number of votes cast for all the candidates for such office shall be t'he only candidate for such office at the ensuing election, in view of the provisions of the constitution relating to the manner of election and the qualifications of a superior judge, is to be construed as meaning that such candidate shall be the only candidate placed on the official ballot.</p>

<p>Constitotionai, Law—Rule of Constbxtction.—Whenever a constitutional provision is plain and unambiguous and no two meanings can. be placed on the words employed, it is mandatory, and courts are bound to obey it,</p> <p>Id.—Taxation—Property of City and County of San Francisco Outside of Territorial Limits—Municipal Water System—Exemption.—Under the provisions of section 1 of article XIIÍ of the' constitution, as it stood prior to the amendment of 1914, property acquired by the city and county of San Francisco outside of its territorial limits for the purpose of building, constructing, operating, and maintaining a municipal waterworks and supply for the benefit of said city and county and the inhabitants thereof, and incidentally to supply water, light, and power to cities outside of such municipality, is exempt from taxation, and mandamus will lie to compel the cancellation of assessments of such property for taxes and sales made for nonpayment of any taxes levied against it.</p> <p>Id.—Municipal Property Exempt from Taxation—Construction of Constitution.—Under such constitutional' provision, all property belonging to a municipal corporation is exempt from taxation, regardless of its location or the use to which it is to he put, as the language employed in such section in classifying the property declared to be exempt from taxation limits the exemption to property used for free public libraries, and free museums, and 'such property as may T)elong to the United States, this state' or to any county or municipal corporation within this state—the word “belong” being employed to denote an unqualified ownership of the ■property, and not an ownership subject to the condition that the property was to be used exclusively for governmental purposes.</p> <p>Id.—Bulb of Construction—Words to be Given Ordinary Meaning.— The constitution of a state derives its force and authority from the vote of the people adopting it, and for that reason, it is a general rule that in construing the provisions of a constitution the words employed therein shall be given the meaning which they bear in ordinary use among the people.</p> <p>Ed.—Private Holding of Outside Property by Municipalities—Nonexistence of Statutes Prior to Constitution—Immateriality.— In determining the meaning ef the word “property” as used in such constitutional provision,, it is immaterial that at the time of the adoption of the constitution in 1879, there were no existing statutes authorizing municipal corporations or counties to hold property situated without their boundaries for private or proprietary purposes, in view of the plain language of the provision.</p> <p>Id,—Exemption of Municipal Property—Violation of Federal Constitution—County not a Party Aggrieved.—A county in levying a tax to raise revenue for the support of its county government is not a party aggrieved by the exemption of a particular piece of property from taxation, and cannot raise the question that the construction of the constitution exempting property of a municipal corporation from taxation within its boundaries, is in conflict with section 1 of amendment XIV of the federal constitution,</p>

<p>APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Mandate to require the trustees of a reclamation district to call in sufficient of an assessment to pay certain warrants.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. J. 0. Honour, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Adultery—Assignment of Community Property.—When a decree of divorce is rendered on the ground of adultery the community property is required to be assigned to the respective parties in such proportions as the court, from all the facts of the case and the condition of the parties, may deem just.</p> <p>Id.—Settlement Contract—Validity of.—Upon this appeal from the portion of the judgment which disposed of the community property of the parties differently from the provisions of a contract settling their property rights, it is held that the evidence fails to show that such contract was void on the alleged ground that it was procured by the coercion, intimidation, and undue influence of the husband.</p> <p>Id.—Husband and Wife—Contracts Concerning Property.—Either husband or wife may enter into any agreement with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between- themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title of the Civil ‘Code on trusts.</p> <p>Id.—Undue Influence—Protection of Legal Eights.—Standing upon one’s legal rights for the protection thereof can-no-t he recognized as coercion, intimidation, or undue influence of any other person.</p>

<p>Claim and Delivery—Undertaking for Bedelivery—Failure of Sureties to Justify—Bight of Plaintiff to Property—Mandamus.—Where in an action in claim and delivery, the plaintiff makes the affidavit and gives the undertaking required to obtain the provisional remedy allowed by section 509 et seq. of the Code of Civil Procedure, the right of the defendant to require the redelivery of the property to him is conditioned upon his giving the undertaking provided by section 514 of such code, and where after the giving of such undertaking, the defendant fails to proceed with the justification of his sureties, the plaintiff is entitled to have the property delivered to him, and mandamus will lie to compel such delivery.</p> <p>Id.—Undertaking for Bedelivery—Plaintiff Party Interested.—In an action in claim and delivery, the plaintiff, as well as the sheriff, is a person interested in the suffioiency of the undertaking given by the defendant to obtain redelivery of the property from the sheriff, and the requirement of section 515 of the Code of Civil Procedure that the plaintiff be given notice of the justification of the sureties upon such an undertaking is a recognition of the plaintiff’s interest therein.</p> <p>Ib.—Mandamus—Proper Bemedy.—In an action in claim and delivery, the plaintiff is not to be denied the remedy of mandamus to- compel the sheriff to deliver the replevied property to him after nonjustifieation of the sureties on the defendant’s undertaking to obtain redelivery, because of the fact that he would have the right to an action for damages against the sheriff, if after judgment in his favor, possession could not be delivered by such officer.</p>

<p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court oi Appeal for the Second Appellate District for a Writ of Habeas Corpus to secure the custody of a child. The facts are stated in the opinion of the court.

<p>Attachment—Action by Judgment Debtor Against Garnishee— Affirmance of Judgment Upon Authority—Distinguishing Feature.—The appeal from the judgment in this case is affirmed upon the authority of Marshall v. Wentz, ante, p. 540 (decided October 8, 1915), wherein the facts were the same, except that the answer alleged the insolvency of the judgment debtor, which was omitted herein, and which became material in determining the sufficiency of the complaint in not containing a direct averment that the judgment of the plaintiff had not been paid.</p> <p>Id.—Pleading—Nonpayment of Judgment—Lack of Direct Averment—Answer—Allegation of Part Satisfaction—Sufficiency of Complaint.—In an action by a judgment creditor against a garnishee, the failure to allege in the complaint by direct averment that the judgment was unpaid at the time of the commencement of the action, is not a sufficient ground for reversal, where it is alleged that an execution had been issued and returned unsatisfied, and in the amended answer that a certain sum had been paid on such judgment and that it had been satisfied to such extent.</p>

<p>Drainage Act—Nixing op Benefits—Discretion of Commissioners.— Under the act providing for the formation of drainage districts (Stats. 1885, p. 204), and the acts amendatory thereof (Stats. 1891, p. 262 and Stats. 1909, p. 25), the fixing of the benefits to accrue to each piece of land from the district and its proposed works is a matter of judgment, and all that is required of the commissioners and all that can he expected of them is that they shall honestly and intelligently investigate the situation, examine the lands, and fix a tax upon each piece of land as in their opinion it should properly pay, upon an apportionment of the whole amount to be raised, according to benefits.</p> <p>Id.—Findings op Commissioners—Presumption of Correctness— Lands not Benefited—Burden op Proof.—The findings of the commissioners are prima facie evidence of their correctness, and the burden is upon those who claim that their lands would not he bene- , fited by the district or its works, to prove their contention.</p> <p>Id.—Judgment op Commissioners—Presumption.—The statute contemplates that considerable discretion shall he exercised by the commissioners in the determination of the question as to benefits which will accrue to the several tracts of land included in the district; and while an arbitrary assessment cannot be levied, the judgment of the commissioners upon the assessment, after a view of the land as contemplated by the statute, must be presumed to have been the result of a consideration of all the elements necessary to a just apportionment of the assessment.</p> <p>Id.—Action to Restrain Collection op Assessments—Fairness op Assessment—Findings Supported by Evidence.—In this action to restrain the trustees of a drainage district from bringing suit to collect certain assessments' alleged to. be illegal, it is held that the presumptions of fairness and justice and correctness that the law makes in favor of the action of the commissioners in apportioning the cost and making the levy, supported by the testimony of witnesses, are abundantly sufficient to sustain the findings of the court that the plaintiff’s lands would be benefited by the contemplated works of the district.</p> <p>Id.—Special Benefits—Indirect Benefit—Levy.—Special benefits to the owners of lands within the district may be considered in making the levy, although others not landowners in .the district may receive some indirect benefits from the improved condition in the district.</p> <p>Id.—Nonassessment op Tract Within District—Lack op Benefits— Valid Assessment.—A property owner cannot contend that the whole assessment is void because of the emission of the commissioners to assess a tract of land within the district, which they, in their judgment, conclude will not he benefited by the works of the district.</p>

<p>Constitutional Law—Scope of Initiative and Referendum—Legis- / lative Matters.—The provision of section 1 of article IV of the / constitution whereby the' people reserved to themselves the power</p> <p>' and the right “to propose laws and amendments to the constitution, and to adopt or reject the same at the polls independent of the legislature,” has exclusive reference to those matters of legislative cognizance which in their nature are strictly legislative, as distinguished from ministerial or .administrative.</p> <p>Id.—Powers Delegated to Electors of Municipalities—Legislative Matters.—The provision of the same section of the constitution whereby the people delegated to the electors of each city and county, city and town of the state, the initiative and referendum powers, to be exercised under such procedure as might be provided by law, or, until the legislature otherwise provided, in such manner as the legislative body of any such city and county, city or town might provide, is also applicable to legislative matters.</p> <p>Id.—Street Improvement Proceedings—Legislative Acts.—Street improvement proceedings in incorporated cities and towns, not governed by freeholders’ charters, are legislative in their character, as distinguished from ministerial or administrative.</p> <p>Id.—Acts in Form of Resolution—Legislative Character.—Street improvement proceedings are none the less acts of a legislative character, because they are expressed or evidenced in the form of a resolution instead of in the form of an ordinance.</p> <p>Id.—Street Improvement Proceedings—Initiative and Referendum Inapplicable to.—Street improvement proceedings, however, notwithstanding the legislative character of the acts-, are not subject to the initiative and referendum provision of the constitution, as the powers given by such constitutional provision and the system estsSbljshed by the legislature cannot coexist, if such provision were applieaMe.</p> <p>Id.—Statutory' -Construction—Intention of People—Scope of Initiative and Referendum Powers.—In examining and ascertaining the intention of the people, with respect to the scope and nature of the powers of the initiative and referendum, it is proper and important to consider what 'the consequences of applying it to a particular act of legislation would be,, and if upon such consideration it be found that by so applying it the inevitable effect would be to greatly impair or wholly destroy the efficacy of some other governmental power, the practical application of which is essential and, perhaps, as in the case of the power to compel the improvement of streets, indispensable, to the convenience, comfort, and well-being of the inhabitants of certain legally established districts or subdivisons of the state, or of the whole state, then in such ease the courts may and should assume that the people intended no such result to flow from the application of those powers and that they do not so apply.</p> <p>Id.—Local Character of Street Work.—The work of improving streets, as authorized by the street law, is confined' to particular districts, and only those persons owning property therein are directly affected by the proposed improvement, and must bear the burdens therefor, and therefore it is mot reasonable to suppose that the people, when enacting the initiative and referendum as applicable to municipal corporations, intended to vest voters whose property was not to be affected by the proposed improvement with the right to a voice in the matter of the proposed work.</p> <p>Id.—Effect of Application of Powers to Street Proceedings.—The effect of the application of the initiative and referendum powers of the people to street improvement proceedings would be not only to deprive interested property owners of the hearings contemplated by the street laws, but would be to delay the improvement to the great inconvenience of the public, and render bonds voted for sueh improvement of precarious or doubtful value.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Stanley A. Smith, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Mandate to compel the State Controller to issue warrants in payment of the salary of petitioner as Judge of the Superior Court in and for the County of Kern.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for Writ of Prohibition originally made to the District Court of Appeal for the Third Appellate District directed to the Superior Court of Lake County and to William Pinch, as acting Judge thereof.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court of Appeal for the Third Appellate District for a Writ of Prohibition directed against the Superior Court of Sacramento County and Honorable Charles O. Busick, Judge thereof. The facts are stated in the opinion of the court.

<p>Prohibition—Foreclosure op Chattel Mortgage—Delivery op Chattels to Receiver—Enforcement op Order—Contempt.—A writ of prohibition will not issue to restrain the superior court from enforcing obedience to an order made by it in an action for the foreclosure of a chattel mortgage directing a party defendant to deliver certain of the mortgaged chattels in her possession to the receiver appointed in the action, on the ground that the citation in contempt proceedings based upon her refusal to comply with the order was not personally served upon her, where she nevertheless appeared in obedience to the citation and admitted the possession, and the court 'thereupon made a new order directing her to make such delivery.</p>

<p>Criminal Daw—Burglary—Commitment—Evidence—Want op Probable Cause—Habeas Corpus.—An order of a committing magistrate holding a defendant to answer for the offense of burglary purported to have been committed by entering the mill of the “Croesus Gold Mining and Milling Company” in the county of Sierra on a certain date "with intent then and there to commit the crime of larceny,” is without support, and the commitment of the defendant thereon is without reasonable or probable cause, and the defendant entitled to Ms discharge on habeas corpus, where the ordier is based solely upon the testimony of a witness as to an admission made to him by the defendant that the latter and his partner “had held up the Plumbago mill,” without any evidence that such mill belonged to the Croesus Company or that the mill was located in Sierra County, or without any other evidence that a crime was committed, except as implied from the use of the phrase “held up.”</p> <p>Id.—Support op Commitment—Complaint.—The complaint cannot be used as matter of evidence at the preliminary examination, or as an affidavit to support the commitment, where it contains nothing more than the mere charge.</p>

<p>Appeal—Temporary Restraining Order—Appealable Order.—A temporary restraining order is an appealable order within the meaning of subdivision 2 of section 963 of the Code of Civil Procedure allowing an appeal from an order "granting or refusing to grant an injunction.”</p> <p>Id.—Election Law—Recall op Supervisor—Statement op Grounds op Recall,—A petition for the recall of a supervisor, made under the provisions of section 4021a of the Political 'Code, as amended in 1912 (Stats. Ex. Sess. 1911, p. 128), which states as grounds therefor, that such official had willfully and fraudulently voted for the allowance of a claim which the district attorney had advised the board was illegal, that he had “commercialized” the office, and in the employment of labor on the highways had given preference to electors who favored Ms own political convictions, and that he had little or no knowledge of the practical engineering or constructing of public highways and by reason thereof was extravagant and wasteful of the highway funds, sufficiently complies with the requirements of such code provision, as the statement of the grounds for the recall is intended solely for the information of the electors, who are the judges of its sufficiency.</p> <p>Id.—Recall Petition—Attempted Withdrawal op Signers After Certification—Enjoining of Election—Power op Superior Court.— Upon the certification -by the county clerk of the sufficiency of a petition for the recall of an elective officer, the duty then devolves upon the board of supervisors to order the election, and the superior court has no jurisdiction to enjoin the hoard from so acting, on the ground that after such certification and before the calling of the election, certain signers to the petition had attempted to withdraw their names therefrom so as to reduce the number below that required to give the hoard authority to call the election.</p> <p>Id.—Statutory -Construction—Recall Statutes—Liberal Construction.-—Statutes enacted in aid of the power given the people by the constitution under -the initiative, referendum, and recall statutes should hs liberally construed -and should not he interfered with by the courts except upon a clear showing that the law is being violated.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION originally made to the District Court of Appeal for the Third Appellate District for admission to bail pending an appeal from the Superior Court of Sacramento County and from a judgment of conviction of forgery. Malcolm C. Glenn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Cartwright Anti-trust Law—Action for Damages—Befusal to Sell Goods—Pleading—Insufficient Complaint.—A complaint in an action for damages based upon the provisions of section 11 of the Cartwright anti-trust law (Stats. 1907, pp. 984, 987), fails to state a cause of action, where the gist of the charge against the defendant is that it is the owner or in control of a large number of different establishments engaged in the manufacture and sale as a wholesaler of certain articles mentioned in the complaint, and that it has refused to sell any of its goods to plaintiff at the prices at which and upon the conditions upon which it sees fit to sell the same kind of articles or goods to other retail dealers.</p> <p>Id.—Damage—Essential to Show.—While in a criminal prosecution against persons for maintaining a trust or combination in restraint of commerce or trade, the gist of the offense is in the formation and maintenance of such trust or combination, and the fact of the existence of the combination for the purpose of doing some prohibited act is all that need be proved to support and sustain the charge, yet, in a civil action for damages based upon the Cartwright anti-trust law, it is incumbent upon the complaining party, not only to allege and prove the existence of an unlawful trust and combination, but also to allege and prove that his business or property has been injured by the very fact of the existence and prosecution of such unlawful .trust or combination.</p> <p>Id.—Business Combination—When Unlawful—Monopoly.—There is no violation of the statute in the mere act of a person purchasing or otherwise securing control of a number of different concerns engaged in the business of manufacturing and selling the same article or commodity, and .the control by one person or corporation of a number of other concerns engaged in its line of business can only become unlawful when the effect of such combination is to establish and foster a monopoly which affects or injures the public welfare.</p> <p>Id.—Fixing of Prices of Manufactured Goods—Selection of Customers—Bight of Manufacturer.—A manufacturer or wholesaler has not only the right to fix the prices for his goods, but he has the right to establish the prices at which such goods shall be sold by retailers, so long as such acts are not the direct effect or result of a combination formed and maintained by him and others to create restrictions in trade or commerce; and he has also the right to select his own customers, and to sell at higher prices to one than to another, provided that such discrimination is not the result of a combination, agreement, or conspiracy between him and others to monopolize or restrict trade or commerce or to prevent legitimate competition.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. George E. Church, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contracts—Hiring on Vessel—Agreement to Return in Good Condition Less Wear and Tear—Liability on Hirer.—An oral agreement chartering a steamer for a certain period and rate of compensation, agreeing to return the vessel at the end of the period in the same condition it was in at the time of the charter' except wear and tear, does not import a contract on the part of the hirer to insure the vessel against inevitable casualties or losses occurring without fault on his part.</p> <p>Id.—Action nor Damages—Wrecking and Sinking on Vessel—Construction on Finding—Judgment not Supported.—In an action by the owner of the vessel against the hirer te recover for losses sustained as the result of the disablement and sinking of the vessel during the period of the hiring, a judgment in favor of the plaintiff cannot be sustained on the theory of liability for the damaging and wrecking of the vessel, as distinguished from the sinking thereof, under the finding “that during the term of said hiring and while said defendant was in the use, occupancy, possession, and control thereof, the said steamboat and its equipment were damaged and injured and became wrecked and sunk,” where such finding is drawn in the exact phraseology of the complaint, which admits of no interpretation save that the defendant was charged with simultaneously damaging, sinking, and wrecking the vessel, and not with the separate and unrelated acts of damaging, then wrecking, and then sinking it.</p> <p>Id.—Theory on Trial — Absence on Record — Determination by Pleadings and Findings.—In the absence of an affirmative showing in the record, the theory upon which a ease was tried may be deduced from the issues framed by the pleadings and the findings made by the court.</p>

<p>Prohibition—-Office of Writ.—The writ of prohibition will issue to restrain judicial act's which are without or in excess of jurisdiction.</p> <p>Id.—Violation of Poison Law—Enforcement of Judgments—Rightful Possession of Drugs.—A writ of prohibition will not lie to prevent a justice’s court from carrying into effect certain judgments convicting the petitioners of having in their possession certain preparations of opium, morphine, and cocaine, contrary to the provisions of an act of the legislature which restricts the sale and keeping of certain drugs and poisons (Stats. 1907, p. 124, as amended, Stats. 1-913, p. 694, and ¡Stats. 1913, p. 697), and from “ordering the confiscation” of the drugs referred to in t'he petition, upon the ground that the conditions under which the possession of the drugs was had showed a state of facts which afforded complete defense to the charge, as the trial court had jurisdiction to hear and determine such matter, and the remedy of the petitioners was by appeal.</p> <p>Id.—-Errors in Exercise of Jurisdiction—Remedy—-Appeal.—Where a court in a criminal case is vested with jurisdiction of the person and offense, mere errors or irregularities of procedure can be corrected on appeal only.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from an order denying a new trial. Emmet Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. W. M. Conley, Judge presiding.</p> <p>The facts are stated in the opinion of the court.</p>

APPLICATION originally made to the District Court of Appeal for the First Appellate District for an order revoking license of an attorney at law. The facts are stated in the opinion of the court. Lloyd S. Ackerman, John B. Clayberg, and Charles M. BufEord, for Bar Association of San Francisco, Petitioner.

<p>Conversion—Purchase and Resale of Stolen Bond—Lack of Knowledge of Ownership.—A partnership engaged in the business of buying and selling stocks and bonds is not liable in damages for the conversion of a bond payable to bearer and transferable upon delivery which had been lost by or stolen from its real owner, and which the partnership had purchased and resold in the ordinary course of business in an allotment of several thousand dollars’ worth of bonds, where it had not in mind the ownership and loss of such bond at the time of the purchase, and the only notice it had ever received thereof was that imparted to its cashier, who simply made a memorandum thereof and placed it upon the desk of the bookkeeper, where it was subsequently lost.</p> <p>Id.—Negotiable Paper—Taking in Good Faith—Knowledge of Defects.—It is sufficient to constitute good faith that the holder of the instrument had no knowledge of the defect of title at the time when he took the paper, although he may have had notice at some previous time.</p> <p>Id.—Good Faith—Meaning of.—The phrase “in good faith” has a settled and well-defined meaning, which generally imports that in any given case the transaction involved was honestly conceived and consummated without collusion, fraud, or knowledge o-f fraud, and without intent to assist in a fraudulent or otherwise unlawful design.</p> <p>Id.—Action for Damages—Quantity of Bond Buying and Selling— Profit upon Transaction—Competent Evidence.—In an action to recover damages for the alleged' conversion of such a bond, it is not error to permit the defendant to show that over ten million dollars’ worth of bonds passed through its hands yearly, and that the only profit of the defendant upon the purchase and resale of the bond in question was five dollars.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Evidence—Declaration of Deceased—Res Gestae.—Upon the trial of a wife for the killing of her husband, where the case against her rests upon proof of incriminating circumstances, against which is her positive denial that she had fired the shot which produced the fatal injuries, it is reversible error to admit in evidence, upon the theory that it is properly a part of the res gestae, a statement made by the deceased about two minutes after the shooting that his wife had shot him, where such statement was made out of the presence of the wife to a third •party, who-, upon hearing the shot, had run a distance of from one hundred and fifty to one hundred and seventy-five yards to the scene of the homicide.</p> <p>Id.—Evidence—Determination of Res Gestae.—When competency is claimed for offered testimony of the acts, conduct, or words of a party to a transaction, expressed out of the presence of the other, on the ground that it is a part of the res gestae, it must appear that the transaction in which the parties were engaged had not ended; in other words, that the actors had not ceased in their performance of things, which made up the total of the occurrence.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Pimping—Evidence—Wipe op Dependant—Acts op March 2 and Feb. 8, 1911.—The amendment of March 2, 1911 (Stats. 1911, p. 270), to section 1322 of the Penal Code, whereby there was added to such section another exception to the cases therein specified wherein a husband or wife may be a competent witness for or against the other in a criminal action to which either or both are parties, and which amendment contained m> repealing danse, did not have the effect of repealing by implication the special provision of the act of the legislature approved February 8, 1911, (Stats. 1911, p. 10), mating the wife a competent witness against her husband charged with the crime of pimping, notwithstanding that such code amendment made no reference to the provision of such act.</p> <p>Id.—Statutory Construction—Repeal op Prior by Later Act— Lack op Repealing! Gdause—Rule,—A later act, containing no repealing clause, does not repeal a prior act except so far as the ■two are clearly inconsistent, or unless it is manifest that the later act was intended as a substitute for the former in all respects, and to cover the entire subject-matter to which both relate.</p> <p>Id.—Repeal by Implication—Special Act not Repealed by General Law.—The law does not favor a repeal by implication; and when two statutes treat of the same subject, one being special, and the other general, unless they are irreconcilably inconsistent, the latter, though later in date, will not be held to have repealed the former, but the special act will prevail in its application to the subject-matter, so far as coming within its particular provision®.</p>

<p>APPLICATION for a Writ of Habeas Corpus originally made in the District Court of Appeal for the Second Appellate District.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Imperial County and from an order denying a new trial. Franklin J. Cole, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Burglary—Evidence—Admissions op Dependant— Foundation.—In a prosecution for burglary it was error for the court to allow in evidence admissions of the defendant before facts were shown sufficient to satisfy the court that the statements were voluntarily made; but where, during the further progress of the examination, the voluntary character of the statements was made to appear, the error was without prejudice.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Judgments Against—Inclusion in Tax Levy—Act op 1901.—It is an essential condition upon which the legal duty of a city council to include the amount of a judgment against the municipality in the tax levy is dependent, under the act of 1901 (Stats. 1901, p. 794), providing for the payment of judgments against counties, cities, cities and counties, and towns, that the county clerk furnish said city council with a report of said judgment at least fifteen days before the day on which the law requires the tax levy to be made; and where such report is not received until the day of the levy, provision must be made in the next year’s levy for the payment of the judgment, and the fact that no earlier notice of the judgment could have been given does not affect such statutory provision.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Lewd and Lascivious Conduct With Minor Child— Pacts for Jury to Determine.—In a prosecution for the crime of lewd and lascivious conduct with a minor child, where the prosecutrix testified positively to facts constituting the offense, it was for the jury to determine whether she was telling the truth; and where it cannot be said that her story was inherently improbable, no question of law is presented as to the sufficiency of the evidence to support the verdict on appeal.</p> <p>Id.—Evidence—Prior Acts—Exhibition op Photograph op Naked Woman.—There was no error in admitting evidence that prior to the alleged commission of the offense charged the defendant had exhibited to the prosecutrix a photograph of a naked woman.</p> <p>Id.—Argument op District Attorney—When not Prejudicial.—It was not prejudicial error for the district attorney while addressing the jury to call the defendant “the dirty old scoundrel,” especially where the jury was advised by the judge to disregard the word “scoundrel.”</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Attachment—Labor and Material in Repair op Vessel.—The lien given by section 813 of the Code of Civil Procedure upon steamers, vessels and boats for work done or materials furnished for their construction, repair or equipment, is not of such fixed and determinate character as to take from the mechanic or materialman the right to bring an ordinary action for such services or material and to have a writ of attachment levied upon the vessel upon which the work was performed or for which the material was furnished.</p> <p>Id.—Nature op Lien Prior to Action Brought—Bloating Right.— The lien given by such code section and the right to enforce it provided by the succeeding sections continues for one year, as between the party who performs labor or furnishes materials in the building or repair and the owner of the vessel, but, unless fixed and determined by action brought, it is but a floating right.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal daw—Preliminary Examination—Order of Commitment— Indorsement upon Deposition—Construction oe Code.—The provision of section 872 of the Penal Code that if it appears upon a preliminary examination that a public offense has been committed and that there is sufficient cause to believe that the defendant is guilty thereof, the magistrate must make or indorse on the complaint an order, signed by him, to that effect, is directory, in so far as the indorsement of the order on the complaint is concerned; and it is sufficient if the indorsement be reduced to writing and signed by the magistrate and entered upon his official docket or upon the complaint or deposition.</p> <p>Id.—Omission to Make Indorsement—Insufficient Ground for Reversal. — A» judgment of conviction, however, will not be set aside because of the failure of the magistrate to make the indorsement of the order of commitment on the complaint or to have it entered in his docket and signed until after a motion to dismiss the information on that ground had been filed, where it is not made to appear that the defendant was deprived of any substantial right by reason of such omission.</p> <p>Id.—Libel—Impeachment of Reputation—Publication of Alleged Oath of Knights of Columbus.—The publication of an article in a newspaper charging the members of the Fourth Degree of a fraternal organization known and called the Knights of Columbus with the taking of an oath which is in itself a violation of their oath of allegiance and of the essential duties and bonds of American citizenship, is an impeachment of their reputations, within the meaning of section 248 of the Penal Code.</p> <p>Id.—Individual Inapplicability of Article—Insufficient Defense. In a criminal prosecution for the publication of such a libel it is no defense to claim that the article had no individual application.</p> <p>Id.—Privileged Character of Libel—Lack of Instruction—Insufficient Ground for New Trial.—The defendant in such a prosecution is not entitled to a new trial on the ground that the record supports the theory that the publication was made for the purpose of enabling the voters at an approaching election to east their ballots more intelligently, and was therefore a privileged communication, where no instruction was requested or given upon the subject of such communications, notwithstanding the defendant relied upon the privilege in making his defense.</p> <p>Id.—Candidates for Office—Protection from Libel.—A candidate for office is as much entitled to protection from defamation as any other citizen, and a public journal or individual who indulges in defamatory assertions about candidates for office is equally responsible for his acts with those who commit the same offense against private individuals, and such libelous matter published against a candidate for a public office is not a privileged communication.</p> <p>Id.—Opinion as to Publication—Statement of Judge—Instruction to Disregard.—A statement made by the judge in the presence of the jury in giving his reasons in denying the defendant’s motion to dismiss the case, that he thought the publication might fairly be interpreted to mean that all persons who were admitted to the Fourth Degree of the Knights of Columbus had taken the published oath, is not reversible error, where the court, upon attention being called to the apparent inadvertence, admonished the jury to disregard such statement.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Demurrer to Amended Complaint and Motion to Strike Out —When not Keviewable.-—The action of the trial court on a demurrer to an amended complaint and a motion to strike out portions thereof cannot be considered on an appeal from an order denying a new trial, there being no appeal from the judgment.</p> <p>Id.—Bill op Exceptions — Insufficiency of Evidence — Specifications.—Where there is no particular specification in a bill of exceptions which points out the weakness of the testimony as to any of the facts in issue, the insufficiency of the evidence to sustain the findings cannot be considered on an appeal from an order denying a new trial.</p> <p>ID.—SUFFICIENCY OF EVIDENCE—WHEN ERRORS NOT ' PREJUDICIAL.-In an action on a contract to do certain excavating and grading work, any errors committed by the court in excluding testimony cannot be deemed to have been prejudicial to the defendant’s rights to a fair trial, when, disregarding the incompetent matter, enough remains in the record to sustain the cause of action as alleged in the amended complaint.</p>

<p>APPEAL from an order of the Superior Court of San Bernardino County and from an order denying a new trial. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Settlement oe Property Rights—Decree Awarding Alimony.—In an action for divorce, where it is alleged in the complaint that the plaintiff and defendant had entered into an agreement for a division of the community property and that the defendant should pay plaintiff a fixed sum per month as alimony, a decree ordering the defendant to pay such alimony is not without the issues, nor is the effect thereof to require the defendant to pay the alimony both under the contract and decree.</p>

<p>Libel—Accusation 'Concerning Theater “Manager”—Pleading—Insufficient Complaint.—A complaint in an action for libel brought ‘by the lessee and manager of a theater for the publication of an article concerning the relations of another person with the chorus girls employed at the theater, and which erroneously stated that such person was the manager of the theater, but which made no reference to the plaintiff, fails to state a cause of action for general damages, and, in the absence of an averment of special damages, no recovery can be had thereon.</p> <p>Id.—Pleading—Innuendo.—Where the words can bear but one meaning, and that is obviously not defamatory, no innuendo or other allegation can make the words defamatory.</p> <p>Id.—Special Damage.—In order to maintain an action upon words which are not libelous per se, the plaintiff must allege and prove special damage.</p>

<p>Eratto—Exchange of Real Property—Action for Damages—Emotion of Remedies.—Where a party who has been induced by fraud to make an exchange of real property for valueless corporate stock institutes an action at law for damages and obtains a judgment therein, he has elected his remedy, and he cannot thereafter maintain an action in equity to impress a trust upon the property which was purchased with the proceeds received from the sale of the exchanged property, nor cancel the homestead declared thereupon.</p>

<p>The facts are stated in the opinion of the court.</p> <p>U. S. Webb, Attorney-General, and Robert M. Clarke, Deputy Attorney-General, for Appellant.</p>

<p>Action to Establish Trust—Contract for Purchase of Automobile —Pleading—Ownership Nonessential Averment.—In an action against the assignee of a contract for the purchase of an automobile, wherein it is sought to have the plaintiff declared the owner thereof to the extent of the amount of her money invested therein by the purchaser, who procured the same from her by means of fraud and false representations, it is not essential to the statement of a cause of action that the complaint should allege that title to the machine had passed to the purchaser, as a trust may, in such a case, be impressed upon the contract, as well as upon the property.</p> <p>Id.-—Assignment of Contract—Knowledge of Plaintiff’s Eights— Sufficiency of Complaint.—The complaint in such action, in the absence of a special demurrer, sufficiently shows that the defendant had knowledge of plaintiff’s rights prior to the assignment, where it is alleged that the assignment was made without consideration, and after knowledge by said defendant that said automobile had been purchased with plaintiff’s moneys and funds “as aforesaid.”</p> <p>Id.—Priority of Liens—Payment by Assignee—Second Lien.—The right of the plaintiff to have an equitable lien declared upon the automobile to the extent of her money invested therein is prior to any right of the assignee to have a lien declared thereon for additional money paid by him after he acquired the contract, where he took the contract with knowledge of the plaintiff’s rights.</p> <p>Id.—Attorney as Defendant—Eepresentation by Counsel—Eight to Cross-examine Witness.—Where the defendant in such action is an attorney at law and is represented by other counsel who conduct his case to a point in the proceedings where the defendant himself proposes to cross-examine a witness, it is not error to deny him such right of cross-examination, it appearing that he would be a witness in his own behalf.</p> <p>Id.-—Conduct of Trial—Party Represented by Attorney.—Where a party appears in court as a litigant represented by an attorney of record, the court may insist that such attorney and not his client, appearing as a party litigant only, conduct the trial.</p>

<p>Criminal Law—Violation op Medical Act—Constitutional Law.— Judgment of conviction and order refusing a new trial affirmed on ■the authority of People v. Tom J. Chong, ante, p. 121.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. M. Seawell, Judge.</p> <p>The facts are similar to those stated in Neal Publishing Company v. Rolph, 169 Cal. 190, [146 Pac. 659],</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge.</p> <p>The facts are similar to those stated in the opinion in People v. Chow Juyan, ante, p. 124, [151 Pac. 554].</p>

<p>APPEAL from a judgment of the Superior Court of the City and Comity of San Francisco and from an order refusing a new trial. William P. Lawlor, Judge.</p> <p>The facts are similar to those stated in the opinion in People v. Chow Juyan, ante, p. 124, [151 Pac. 554].</p>

<p>APPLICATION for a Writ of Habeas Corpus.</p> <p>The facts are similar to those stated in the opinion in Ex parte Hartwell, ante, p. 627, [153 Pac. 730].</p>

<p>Criminal Law—Burglary—Evidence—Admissions.—In this prosecution for burglary the judgment and order are affirmed on the authority of People v. Morrell, (Crim. No. 424), ante, p. 729.</p>

APPLICATION originally made to the District Court of Appeal for the Second Appellate District for a Writ of Habeas Corpus directed' to the Chief of Police of the City of San Diego. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nicol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>